Citation Nr: 21075254 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-20 003 Advanced on the Docket DATE: December 20, 2021 ORDER Service connection for lumbosacral strain and degenerative arthritis with intervertebral disc syndrome (IVDS) is granted. REMANDED Service connection for left total hip replacement is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, the record shows that the Veteran's lumbar spine disability had its onset during service. CONCLUSION OF LAW The criteria to establish service connection for lumbosacral strain and degenerative arthritis with IVDS have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1990 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021 correspondence, the Veteran withdrew his request for a hearing. His request for a hearing before the Board is accordingly deemed to be effectively withdrawn. See 38 C.F.R. § 20.704(e). Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Entitlement to service connection for a low back disability. The Veteran asserts that service connection is warranted for his lumbar spine disability because the disability started while he was in service. In support of his claim, the Veteran reported having back problems in service, and thereafter, where he received medical treatment. See April 2004 VA Form 21-4138. Indeed, his service treatment records and medical treatment records show that he suffered from back problems, symptoms and functional impairment in service, and received medical treatment during service and thereafter. See April, May, and June 1992 service treatment records. The Veteran has been diagnosed as having degenerative arthritis of the lumbar spine, IVDS and lumbosacral strain. See October 2015 VA back conditions examination. Thus, the Veteran has a current disability, and establishes the first element for service connection. Additionally, the Veteran's service treatment records and post-service medical records reflect back problems and functional impairment, with treatment in service and thereafter. See April, May, and June 1992 service treatment records; see also February 2004 VA medical treatment record. The Board acknowledges the October 2015 VA examiner's negative nexus opinion as to the etiology of the Veteran's low back disability. However, the Board finds that the opinion is inadequate as it is not supported by rationale and does not address the Veteran's report of symptoms since service. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-304 (2008). The Board finds that the medical and lay evidence linking the Veteran's low back disability to service is probative, competent and credible. Indeed, the Veteran's medical records show back problems in service and thereafter, and he is competent and credible to report recurrent back problems since his documented in-service back treatment. Collectively, this lay and medical evidence shows that it is at least as likely as not that the Veteran's current low back disability had its onset during service. After resolving any doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran's low back disability had its onset during service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). In addition, the Board directs to the attention of the RO that there are findings in the October 2015 VA examination of a possible left lower radiculopathy disability. See VA back conditions examination. REASONS FOR REMAND 2. Entitlement to service connection for a left hip disability. The Veteran asserts that service connection is warranted for his left hip disability as related to service and to his service-connected disabilities. See April 2004 VA Form 21-4138. In support of this claim, the Board notes that Veteran had his left hip replaced shortly after leaving service. See February 2004 VA medical treatment record. The Board acknowledges that the October 2015 VA examiner mentioned the Veteran's left hip condition. However, the Board finds this examination is inconclusive and inadequate since it did not provide supporting rationale regarding the Veteran's left hip onset and relation to service, and his now service-connected low back disability. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-304 (2008); see also El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). Thus, a VA examination for his left hip disability and associated functional impairment is necessary to adjudicate this appeal. Therefore, on remand the Veteran should be provided a VA medical examination to determine the onset, nature and etiology of his left hip disability, to include whether his left hip disability is secondary to his low back disability. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service left hip disability. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of his left hip disability. The examiner is asked to address the following: (a) Is it at least as likely as not that the Veteran's left hip disability is related to or had its onset during service? (b) Is it at least as likely as not that the Veteran's left hip disability is caused by his service-connected low back disability? (c) Is it at least as likely as not that the Veteran's left hip disability was aggravated by his service-connected low back disability? A complete rationale should be given for all opinions and conclusions expressed. Please note that separate opinions addressing proximate cause and aggravation are needed. In offering this opinion, the examiner must acknowledge and discuss the Veteran's competent lay statements of his disability and any lay evidence regarding the onset of his disability. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.